Brown v. Rivera

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

EDWARD BROWN,

No. 6:06-cv-06274-MAT

Petitioner, DECISION AND ORDER

-vs-

ISRAEL RIVERA, Superintendent,

Coxsackie Correctional Facility, and

ELIOT SPITZER, Attorney General,

State of New York,

Respondents.

I. Introduction

Edward Brown (“Petitioner” or “Brown”) filed this pro se

Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254

challenging the constitutionality of his May 3, 1996 conviction,

following a jury trial in Monroe County Court (Maloy, J.) of New

York State, on one count of second-degree (intentional) murder. On

July 23, 2009, this Court issued a Decision and Order denying

Brown’s request for a writ of habeas corpus, dismissing the

Petition, and denying a certificate of appealability. Brown filed

a notice of appeal with the United States Court of Appeals for the

Second Circuit but did not pay the filing fee. The Second Circuit

sua sponte issued an order to show cause on October 28, 2009, why

the appeal should not be dismissed for failure to pay the required

filing fee. After Brown failed to respond, the Second Circuit

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dismissed his appeal on April 12, 2010.

On June 30, 2019, Brown filed the instant pro se motion to

vacate pursuant to Federal Rule of Civil Procedure 60(b)(6) (“Rule

60(b)(6) Motion”). For the reasons discussed herein, the Court

denies the Rule 60(b)(6) Motion.

II. Discussion

A. Rule 60(b)(6) in the Habeas Context

The United States Supreme Court has held that Rule 60(b)

applies in the habeas context. Gonzalez v. Crosby, 545 U.S. 524,

534 (2005). Rule 60(b)(6), the particular provision under which

Brown asserts his motion, permits reopening of the judgment when

the “movant shows ‘any . . . reason justifying relief from the

operation of the judgment’ other than the more specific

circumstances set out in Rules 60(b)(1)-(5).” Id. at 529-30.

Regardless of how it is labeled, a petitioner’s Rule 60(b)

motion for relief from the denial of a habeas petition may, in

certain circumstances, be considered a second or successive habeas

petition under 28 U.S.C. § 2244(b)(1). See Gonzalez, 545 U.S. at

531. In Gonzalez, the Supreme Court explained that a motion for

relief from judgment seeking to advance one or more substantive

claims following denial of a habeas petition, such as a motion

seeking leave to present a claim that was omitted from habeas

petition due to mistake or excusable neglect, or seeking to present

newly discovered evidence not presented in petition, or seeking

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relief due to a purported change in substantive law since the

petition was denied, is properly classified as a “second or

successive habeas petition,” requiring authorization under 28

U.S.C. § 2244(b)(3)(A). Id.

On the other hand, a Rule 60(b) motion challenges “the

integrity of the federal habeas proceedings,” and is thus properly

brought under this rule, when it “merely asserts that a previous

ruling which precluded a merits determination was in error—for

example, a denial for such reasons as failure to exhaust,

procedural default, or statute-of-limitations bar.” Gonzalez, 545

U.S. at 532 n.4. For example, in Rodriguez, the Second Circuit held

that a habeas petitioner’s claim that his state trial attorney made

fraudulent representations to the federal district court and that

the respondent fraudulently concealed that he had deposed the trial

attorney related to the integrity of the federal habeas proceeding,

not to the integrity of the state criminal trial. 252 F.3d at 199.

The Second Circuit explained that “[t]hese grounds, if proven,

would simply result in the reopening of the federal habeas

proceeding—not in the vacating of the state criminal judgment.” Id.

And in Gonzalez, the Supreme Court held that the petitioner’s Rule

60(b) motion “challenge[d] only the District Court’s previous

ruling on the AEDPA1 statute of limitation,” and thus was “not the

1

The Anti-Terrorism and Effective Death Penalty Act, Pub. L. No. 104-132,

110 Stat. 1214 (1996).

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equivalent of a successive habeas petition.” 545 U.S. at 535-36.

It bears emphasizing that “[a] motion to reopen a habeas

proceeding under Rule 60(b) is permissible where it ‘relates to the

integrity of the federal habeas proceeding, not to the integrity of

the state criminal trial.’” Brown v. Ercole, 563 F. App’x 821, 822

(2d Cir. 2014) (unpublished opn.) (quoting Rodriguez v. Mitchell,

252 F.3d 191, 199 (2d Cir. 2001); citing Gonzalez v. Crosby, 545

U.S. at 538; emphasis supplied). “The remedy, if granted, is simply

‘the reopening of the federal habeas proceeding.’” Brown, 563 F.

App’x at 822 (quoting Rodriguez, 252 F.3d at 199).

To properly characterize Brown’s Rule 60(b)(6) Motion, the

Court must determine if it advances one or more new “claims” for

relief from a State court’s judgment of conviction. See Gonzalez,

545 U.S. at 531. The Supreme Court explained that “[a] motion that

seeks to add a new ground for relief . . . will of course qualify”

as a second or successive petition, while “[a] motion can also be

said to bring a ‘claim’ if it attacks the federal court’s previous

resolution of a claim on the merits, since alleging that the court

erred in denying habeas relief on the merits is effectively

indistinguishable from alleging that the movant is, under the

substantive provisions of the statutes, entitled to habeas relief.”

Id. (footnote omitted).

B. Grounds for the Rule 60(b)(6) Motion

Brown raises several argument points in his Rule 60(b)(6)

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Motion. The Court summarizes them below and addresses whether they

relate to the integrity of the habeas proceeding or related to the

integrity of the State criminal trial and, as such, are new

“claims” outside of Rule 60(b)’s scope.

1. Respondent’s Alleged Failure to Comply with Rule 5

of the Rules Governing § 2254 Proceedings.

Brown asserts that “extraordinary circumstances exist where

petitioner has discovered-post judgment that improper and

prejudicial conduct identified as failure to comply with the

Court’s Rule 5 order presenting an incomplete state court record in

the prior habeas proceeding was committed by the respondent[.]”

Rule 60(b)(6) Motion at 2. Specifically, Brown points to the

Court’s July 31, 2006 Order directing Respondent to “provide the

Court the transcripts of the proceedings, (pre-trial, trial),

together with any record(s) of such proceedings[.]” Brown contends

that Respondent “failed to comply with this Order where it failed

to file a complete State Court Record containing Jury Notes #7 and

#8, presented herein as [Exhibits K and L], respectively.” Rule

60(b)(6) Motion at 3 (brackets in original). According to Brown,

Respondent’s “filing an incomplete State Court Record, made

compliance with Habeas procedural rules impracticable in the prior

proceeding, therein affecting the integrity of that proceeding.”

Id. at 5.

As an initial matter, motions brought under clause (6) of Rule

60(b) must be filed “within a reasonable time.” FED R. CIV. P. 60(b).

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Ten years from the date judgment was entered is clearly not a

reasonable time. See Rodriguez, 252 F.3d at 201 (“We do not think

that three and one-half years from the date judgment was entered

[dismissing the habeas petition] is a reasonable time [for purposes

of Rule 60(b)(6)].”). Even if the motion were timely filed, it

still fails because “[r]elief under Rule 60(b)(6) is appropriate

only in cases presenting extraordinary circumstances,” First

Fidelity Bank, N.A. v. Gov't of Antigua & Barbuda, 877 F.2d 189,

196 (2d Cir. 1989) (internal quotation marks omitted). Brown has

failed to allege any such circumstances.

Furthermore, in ground one, Brown has not identified an error

that affects the integrity of the habeas proceeding because in his

Petition, he raised no claims for habeas relief based on jury

selection, jury deliberations, or the trial court’s or trial

counsel’s handling of any juror-related issues. Therefore, the

absence of the two jury notes from the State court records did not

detract from the Court’s ability to fully consider the merits of

his habeas petition in 2009.

2. Ineffective Assistance of Trial Counsel

Brown contends that the jury notes referenced above were

submitted to County Court Judge Maloy on March 12, 1996, but were

not read in open court which was a violation of New York Criminal

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Procedure Law (“CPL”) § 310.30.2 He faults his trial counsel for

failing to preserve this error by way of objection, which resulted

in Brown being unable to argue this claim on direct appeal. Brown

contends that had trial counsel objected to this error, he would

have been entitled to “automatic reversal of his conviction, where

Judge Maloy conducted ex-parte communications with the deliberating

Jury concerning ‘fear & apprehension’, which constitutes improper

and prejudicial conduct” under People v. O’Rama, 78 N.Y.2d 270

(1991).3 See Rule 60(b)(6) Motion at 7.

This argument plainly attacks the integrity of Brown’s State

criminal trial and has nothing to do with the integrity of the

Federal habeas proceeding. Therefore, it constitutes a new “claim”

2 CPL § 310.30 provides in relevant part as follows:

At any time during its deliberation, the jury may request the court

for further instruction or information with respect to . . . to any

other matter pertinent to the jury’s consideration of the case. Upon

such a request, the court must direct that the jury be returned to

the courtroom and, after notice to both the people and counsel for

the defendant, and in the presence of the defendant, must give such

requested information or instruction as the court deems proper. . .

.

N.Y. CRIM. PROC. LAW § 310.30.

3

In People v. O’Rama, the New York Court of Appeals construed CPL § 310.30to

require that, “whenever a substantive written jury communication is received by

the Judge, it should be marked as a court exhibit and, before the jury is

recalled to the courtroom, read into the record in the presence of counsel.” 78

N.Y.2d at 277-78. “[T]here is no corollary requirement to CPL § 310.30 under

federal law.” Jones v. Annucci, 124 F. Supp.3d 103, 130 (N.D.N.Y. 2015) (“[A]ny

alleged error in the court’s handling of the jury notes was solely a violation

of state law, beyond the purview of this Court, and not a constitutional

violation.”) (citing Cornado v. Bellnier, No. 10–CV05265, 2012 WL 6644637, at

*5–6 (S.D.N.Y. Sept. 20, 2012) (“A claim premised on a violation of [CPL § ]

310.30 does not allege a violation of a federally protected right.”)).

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for relief which cannot support vacatur under Rule 60(b)(6). In

other words, to the extent that Brown’s Rule 60(b)(6) motion

attempts to asserts a Federal basis for relief from a State court

conviction, it is “in substance a successive habeas petition and

should be treated accordingly.” Gonzalez, 545 U.S. at 531.

Section 2244(b) of Title 28 of the United States Code, as

amended by AEDPA, sets forth several requirements for the filing of

a second or successive habeas corpus application, including a

purported Rule 60(b) motion that must be treated as a second or

successive petition under Gonzalez, 545 U.S. at 531. Of particular

relevance here, Section 2244(b) states that

(A) [b]efore a second or successive application permitted

by this section is filed in the district court, the

applicant shall move in the appropriate court of appeals

for an order authorizing the district court to consider

the application. . . .

28 U.S.C. § 2254(b)(3)(A). The district court does not have subject

matter jurisdiction over any second or successive habeas petition

until such time as the relevant circuit court of appeals determines

that the new petition makes a prima facie showing of the requisite

elements listed in 28 U.S.C. § 2244(b)(2)(A) or (B). See, e.g.,

United States v. Gallegos, 142 F.3d 1211 (10th Cir. 1998)

(defendant’s third § 2255 motion was filed after April 24, 1996,

the effective date of AEDPA; therefore, he was required to obtain

prior authorization from the circuit court before filing in the

district court; however, defendant failed to obtain this

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authorization and the district court lacked subject matter

jurisdiction to decide defendant’s third § 2255; accordingly, the

district court’s order denying the motion must be vacated)

(citation omitted).

The Second Circuit has held that “when a second or successive

petition for habeas corpus relief . . . is filed in a district

court without the authorization by this Court that is mandated by

§ 2244(b)(3), the district court should transfer the petition or

motion to this Court in the interest of justice. . . .” Liriano v.

United States, 95 F.3d 119, 123 (2d Cir.1996) (per curiam). The

district court “always has the alternative of simply denying, as

beyond the scope of Rule 60(b) . . . the portion believed to

present new attacks on the conviction.” Gitten v. United States,

311 F.3d 529, 534 (2d Cir. 2002). Here, Brown has already asked the

Second Circuit for leave to file a second or successive petition

based on the two jury notes. That court rejected his motion in a

summary order as follows:

Petitioner’s claims are based on two jury notes that were

submitted to the trial judge. Assuming that evidence

“could not have been discovered previously through the

exercise of due diligence,” Petitioner has failed to make

a showing that “the facts underlying the claim[s], if

proven and viewed in light of the evidence as a whole,

would be sufficient to establish by clear and convincing

evidence that . . . no reasonable factfinder would have

found [him] guilty of the underlying offense.” 28 U.S.C.

§ 2244(b)(2)(B)(i)–(ii). The proffered evidence relates

to the jury deliberation process, and possible juror

bias, but has no bearing on whether Petitioner committed

the charged offense; a reasonable factfinder could still

find Petitioner guilty based on the evidence presented at

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trial.

Summary Order at 1, Brown v. Rivera, 19-536 (2d Cir. May 6, 2019).

It is highly unlikely that the Second Circuit will now permit a

successive habeas petition based on the same factual predicate it

found did not fulfill the requirements of § 2244(b)(2) a mere three

months ago. Therefore, in the interest of judicial economy, the

Court declines to transfer the Rule 60(b)(6) Motion to the Second

Circuit. The Court instead denies the second ground raised by Brown

in the instant motion as outside the scope of Rule 60(b).

3. Ineffective Assistance of Appellate Counsel

Brown next contends that his appellate counsel rendered

ineffective assistance on direct appeal by failing to properly

investigate and file a complete record on appeal and failing to

raise the following arguments: trial counsel was ineffective in

failing to object to the violation of CPL § 310.30; and the trial

court violated Browns’s State and Federal constitutional right to

a fair trial by an impartial jury. See Rule 60(b)(6) Motion at 13.

As is the case with ground two, ground three “present[s] new

attacks on the conviction” and therefore is “beyond the scope of

Rule 60(b),” Gitten, 311 F.3d at 534. Therefore, it is denied.

Finally, the Court declines to transfer this branch of the motion

to the Second Circuit out of the same concerns for judicial economy

discussed in the foregoing section.

III. Conclusion

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For the foregoing reasons, the Rule 60(b)(6) Motion is denied.

Brown has not fulfilled the requirements of obtaining a certificate

of appealability, the Court declines to issue one. See Kellogg v.

Strack, 269 F.3d 100, 103-04 (2d Cir. 2001) (per curiam) (citing 28

U.S.C. § 2253(c)).

SO ORDERED

S/ Michael A. Telesca

HONORABLE MICHAEL A. TELESCA

United States District Judge

DATED: September 3, 2019

Rochester, New York

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